I. Introduction: Access rights in the jurisdiction

“The right of access to judicial proceedings and records is well-established.” Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 628, 570 S.E.2d 809, 811 (2002). “A trial is a public event . . . There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.” Am. Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350, 362, 542 S.E.2d 377, 384 (2001) (quoting Craig v. Harney, 331 U.S. 367, 374 (1947)). Public access “serves both a therapeutic value, as an outlet for community concern when a shocking crime occurs, and as a means for the public to see that all citizens are treated equally.” Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 585, 281 S.E.2d 915, 921 (1981). Access also “promotes public confidence in the judicial process.” Hertz v. Times-World Corp., 259 Va. 599, 613, 528 S.E.2d 458, 465 (2000) (Koontz, J., dissenting).

The Supreme Court of Virginia decided a few important right of access cases, but overall, Virginia precedent on key access issues is lacking. Federal courts, by contrast, have addressed a wide variety of access issues. Virginia courts are bound by the United States Supreme Court’s interpretations of the First Amendment. See House v. Commonwealth, 210 Va. 121, 169 S.E.2d 572 (1969) (observing that in determining whether allegedly obscene publications were within area of free speech and press protected by First Amendment to Constitution, court was bound by decisions of United States Supreme Court); accord Dickerson v. Commonwealth, 181 Va. 313, 330, 24 S.E.2d 550, 558 (1943) (“We are bound by the judicial construction placed upon the provisions of the Federal Constitution by the Supreme Court of the United States. It is the final authority on that subject.”). However, decisions from the United States Court of Appeal for the Fourth Circuit and its lower courts in Virginia are merely persuasive; they are not binding on Virginia courts. See Toghill v. Commonwealth, 289 Va. 220, 227, 768 S.E.2d 674, 677 (2015) (“While this Court considers Fourth Circuit decisions as persuasive authority, such decisions are not binding precedent for decisions of this Court.”). Practitioners should be mindful that Virginia courts are not always receptive to federal court decisions, even in cases involving a First Amendment right of access.

A. The roots of access rights

In Virginia, there are four sources of the public’s presumptive right of access to judicial proceedings and records: (1) the common law; (2) the First Amendment to the federal Constitution; (3) Article I, Section 12 of the Virginia Constitution; and (4) the Virginia Code.

Various provisions of the Virginia Code bear on the public’s qualified right of access, including most notably proceedings involving juvenile defendants, see Va. Code § 16.1-302(C); certain proceedings involving certain sex crimes, see Va. Code § 18.2-67.8; proceedings involving juvenile victims, see Va. Code § 18.2-67.9; proceedings involving the settlement of wrongful death claims, see Va. Code § 8.01-55; records maintained by the circuit court clerks, see Va. Code § 17.1-208(B); and records maintained by clerks of the general district courts, see Va. Code § 16.1-69.54:1(E).

B. Overcoming a presumption of openness

The common law provides a default presumption of access to all judicial records. See Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 262 n.3, 368 S.E.2d 253, 257 n.3 (1988) (“There is no question that the press and the public jointly possess a common-law right to inspect and copy judicial records and public documents.”); Smith v. Richmond Newspapers, Inc., 261 Va. 113, 117, 540 S.E.2d 878, 880 (2001) (noting the “the generally accepted common-law rule of openness of judicial proceedings and judicial records”). The Virginia Supreme Court has never distinguished between the burden to overcome a common law presumption from the burden to overcome a constitutional presumption. However, the Fourth Circuit has held that a party seeking to overcome the common law presumption of access bears the burden of showing some countervailing interest that outweighs the public interests in access. Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988); see also In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 293 n.12 (4th Cir. 2013) (“[T]o overcome the common law presumption of access, the government's interests must merely outweigh the public's interest.”). Some of the factors to be weighed in the common law balancing test include whether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage; whether release would enhance the public’s understanding of an important historical event; and whether the public has already had access to the information contained in the records. Virginia Dep't of State Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004) (quoting In re Knight Publ. Co., 743 F.2d 231, 235 (4th Cir.1984)).

In contrast to the common law, the First Amendment right of access only applies to particular proceedings and records, but weighs more heavily in favor of openness. See Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640, 643 (W.D. Va. 2006) (“Generally speaking, the First Amendment right of access applies to a narrower range of materials, yet weighs more heavily in favor of the public’s right to obtain those sealed documents.”). The standard for overcoming a First Amendment presumption of access is more “rigorous” than the common law standard. In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986). To overcome a First Amendment presumption of access, the moving party must show: (1) that restricting access is necessary to further a compelling governmental interest; (2) that the restriction is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. See Virginia Dep't of State Police, 386 F.3d at 575 (quoting Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988)); In re Knight Pub. Co., 743 F.2d 231, 234 (4th Cir. 1984).

The qualified right of access under Article I, Section 12 of the Virginia Constitution is coextensive with the First Amendment. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 455 n.7, 739 S.E.2d 636, 640 n.7 (2013) (declining to distinguish between right of access under Article I, § 12 and the First Amendment); see also Elliott v. Commonwealth, 267 Va. 464, 473–74, 593 S.E.2d 263, 269 (2004) (declaring that “Article I, § 12 of the Constitution of Virginia is coextensive with the free speech provisions of the federal First Amendment.”). Accordingly, as with the First Amendment, the public’s right of access under Article I, Section 12 of the Virginia Constitution can only be denied upon a strong showing of a compelling governmental interest, and any closure must be narrowly tailored to serve that interest. Daily Press, Inc., 285 Va. at 455, 739 S.E.2d at 641. For example, if a portion of the record or proceeding is properly sealed or closed, the remaining portions should be open to the public. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 589, 281 S.E.2d 915, 923 (1981). Furthermore, closure or sealing must be the least restrictive means of avoiding the perceived danger of public access. See Daily Press, Inc., 285 Va. at 456, 739 S.E.2d at 641.

The statutory presumption of access to court records under Virginia Code § 17.1-208 “is equivalent to the constitutional right of access.” Daily Press, Inc. v. Commonwealth, 285 Va. 447, 456, 739 S.E.2d 636, 641 (2013). The presumption of access to judicial records under § 17.1-208 may only be overcome by an interest “so compelling that it cannot be protected reasonably by some measure other than a [sealing] order, and [ ] any such order must be drafted in the manner least restrictive of the public’s interest.” Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 258-59, 368 S.E.2d 253, 256 (1988).

The proposed closure or sealing must actually operate to prevent the threatened danger of public access. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 455, 739 S.E.2d 636, 641 (2013) (“First, there was no evidence that publication of the information contained in the exhibits would prejudice Stoffa's right to a fair trial, or that sealing the exhibits would prevent any such prejudice.”).

There may be circumstances where delayed disclosure may strike the appropriate balance between the public’s right of access and competing interests favoring closure. However, the presumption of access to judicial records includes the right to contemporaneously review them. Therefore, absent a compelling interest sufficient to rebut the presumption of access, delayed access violates the public’s right of access. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 454, 739 S.E.2d 636, 640 (2013) (“Neither the expiration of the sealing order nor the later availability of the exhibits cured this deprivation of the right to contemporaneously review the files.”).

Because the common law and First Amendment provide different degrees of access and implicate different competing interests, the Fourth Circuit has admonished trial courts to identify the source of the right of access before balancing competing interests. See Virginia Dep't of State Police v. Washington Post, 386 F.3d 567, 576 (4th Cir. 2004); Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th Cir. 2014); Under Seal v. Under Seal, 230 F.3d 1354 (4th Cir. 2000) (remanding in part because district court failed to identify source of public’s right of access). To determine whether a First Amendment right of access exists, the Fourth Circuit applies the experience and logic test articulated by the Supreme Court in Press–Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). See Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989). The Supreme Court of Virginia has applied the experience and logic test to conclude that the public does not have a right of access under Article I, Section 12 of the Virginia Constitution to compel testing of evidence in a criminal proceeding. See Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 629–30, 570 S.E.2d 809, 812–13 (2002).

The public must have advance notice, reasonable under the circumstances, of the closure or sealing motion and that a hearing on the motion will be conducted;

The party seeking to restrict public access must bear the burden of showing that closure is justified;

The trial court must consider alternatives to closure; and

Upon entering an order restricting public access, the trial judge must articulate on the record its findings that the evidence supports closure, that alternatives will not protect the interest threatened by public access, and that closure will be effective in protecting that interest.

Notice and an opportunity to be heard are critical. Failing to conduct a hearing on the merits before closing a proceeding is grounds to vacate the closure order and require public access. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 281 S.E.2d 915 (1981).

A closure motion should be made in writing and filed with the court before the day of the hearing, and interested members of the public should have the right to be heard, with the assistance of counsel if desired. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 281 S.E.2d 915 (1981).

If evaluation of the motion requires disclosure of the very information sought to be withheld from the public, the trial court may hear or observe the information in camera. However, when it is not possible to hold the entire hearing in public, only that portion that would be prejudicial should be closed. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 281 S.E.2d 915 (1981).

Because the presumption is in favor of openness, a court need not make findings of fact to justify a decision denying a request to restrict public access. Perreault v. The Free Lance-Star, 276 Va. 375, 390, 666 S.E.2d 352, 360 (2008).

The findings supporting closure must be particularized, not generally applicable to all cases. See Hawkins v. Hawkins, 82 Va. Cir. 351, 2011 WL 12663403, *1 (Madison Cir. Ct. Mar. 16, 2011) (“Finally, it must be noted that, if the order in this case is approved, the same request would have to be granted by the court in many other domestic cases. Such files would then be routinely sealed for the convenience of the parties and not thereafter open to public inspection. In my judgment, this would not be appropriate.”).

A federal district court in Virginia has held that even where all of the litigants support the motion to seal, and even where a public hearing on the question does not bring forth anyone to assert the right of access, a court must still engage in a careful deliberation on the issue. Benedict v. Hankook Tire Co. Ltd., 323 F. Supp. 3d 747, 754 (E.D. Va. 2018).

A. Media standing to challenge closure

“The press does not have a right of access greater than the public at large under the First Amendment, or under Article I, Section 12 of the Constitution of Virginia.” Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 628, 570 S.E.2d 809, 812 (2002) (internal citations omitted). Rather, the news media’s right of access is derivative of the general public’s. Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 256, 368 S.E.2d 253, 254 (1988). Thus, the media, as part of the general public, has standing to intervene in judicial proceedings for the limited purpose of asserting the public’s right of access. See Hertz v. Times-World Corp., 259 Va. 599, 609, 528 S.E.2d 458, 463 (2000) (“We recognized in Richmond Newspapers the right of a newspaper to intervene in a criminal proceeding for the sole purpose of challenging a circuit court's ruling which closed criminal proceedings.”). See also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 (1982) (“[R]epresentatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’”).

B. Procedure for requesting access in criminal cases

There are no hard and fast rules in Virginia for requesting access to judicial proceedings and records. When access is denied, it is often the result of a miscommunication or misinterpretation of the judge’s directions, and sometimes it is done without the judge’s knowledge. Judges appreciate the opportunity to correct a mistake, or to more thoroughly consider closure and sealing options, without enduring a full-blown adversarial contest. Therefore, whenever practical, one denied access should first bring the issue to the court’s attention informally, either by oral motion or by submitting a letter to the court. However the request is presented, it is critical that the request unambiguously identify the access sought, with as much specificity as circumstances allow. Additionally, the request should be memorialized in a writing that is incorporated into the record of the underlying proceeding. Similarly, if the request is denied, a written record of the denial should be preserved and made part of the court’s record. Following these steps preserves the requesting party’s ability to challenge both the procedural and substantive aspects of an order restricting access.

In the event that intervention is warranted, the requesting party should consult the forum’s local rules, if any, governing intervention and motions practice generally. A written motion requesting leave to intervene for the limited purpose of asserting the public’s qualified right of access, accompanied by or consolidated with a supporting memorandum citing the applicable legal authorities, ordinarily will suffice. The motion and any supporting memorandum should be served on all counsel of record. In time-sensitive matters, a courtesy copy should be provided to the court.

C. Procedure for requesting access in civil matters

There are no hard and fast rules in Virginia for requesting access to judicial proceedings and records. When access is denied, it is often the result of a miscommunication or misinterpretation of the judge’s directions, and sometimes it is done without the judge’s knowledge. Judges appreciate the opportunity to correct a mistake, or to more thoroughly consider closure and sealing options, without enduring a full-blown adversarial contest. Therefore, whenever practical, one denied access should first bring the issue to the court’s attention informally, either by oral motion or by submitting a letter to the court. However the request is presented, it is critical that the request unambiguously identify the access sought, with as much specificity as the circumstances allow. Additionally, the request should be memorialized in a writing that is incorporated into the record of the underlying proceeding. Similarly, if the request is denied, a written record of the denial should be preserved and made part of the court’s record. Following these steps preserves the requesting party’s ability to challenge both the procedural and substantive aspects of an order restricting access.

In the event that intervention is warranted, the requesting party should consult the forum’s local rules, if any, governing intervention and motions practice generally. A written motion requesting leave to intervene for the limited purpose of asserting the public’s qualified right of access, accompanied by or consolidated with a supporting memorandum citing the applicable legal authorities, ordinarily will suffice. The motion and any supporting memorandum should be served on all counsel of record. In time-sensitive matters, a courtesy copy should be provided to the court.

D. Obtaining review of initial court decisions

In 1997, the Virginia Court of Appeals, citing its own precedent and decisions from the Fourth Circuit, held that “[m]andamus rather than appeal is the proper means to challenge the closure order in a pending criminal trial.” In re Times-World Corp., 25 Va. App. 405, 412, 488 S.E.2d 677, 680 (Va. Ct. App. 1997) (internal quotations and citations omitted). Three years later, however, the Supreme Court of Virginia found that the Court of Appeals’ decisions were “wrongly decided” and “inconsistent with principles firmly entrenched in [Virginia] jurisprudence” concerning the availability of mandamus. Hertz v. Times-World Corp., 259 Va. 599, 610, 528 S.E.2d 458, 464 (2000). In a 4-3 decision that included a vigorous dissent, the Supreme Court held that closure and sealing orders may only be reviewed by appeal, not mandamus. Id. See also id. at 610–15, 528 S.E.2d at 464–67 (2000) (Koontz, J., dissenting). Yet, one year after Hertz, the Virginia Supreme Court unanimously held that mandamus was the appropriate remedy to direct a circuit court clerk to permit inspection of audio tape recordings filed in connection with a felony criminal trial. See Smith v. Richmond Newspapers, Inc., 261 Va. 113, 118-119, 540 S.E.2d 878, 881-882 (2001). Interestingly, the justice who authored the dissent in Hertz also authored the majority, unanimous decision in Smith.

Requiring an appeal rather than allowing mandamus undermines the public’s contemporaneous right of access, a concern highlighted by the dissenting justices in Hertz. See Hertz, 259 Va. at 614, 528 S.E.2d at 466 (Koontz, J., dissenting). Since Hertz, the Virginia Supreme Court has acknowledged that “to work effectively, public access must be contemporaneous—the public must be able to scrutinize the judicial process as it takes place... To delay or postpone disclosure undermines the benefits of public scrutiny and may have the same result as complete suppression.” Daily Press, Inc. v. Commonwealth, 285 Va. 447, 453, 739 S.E.2d 636, 640 (2013). See also Daily Press, Inc. v. Commonwealth, 60 Va. App. 213, 228, 725 S.E.2d 737, 744 (Va. Ct. App. 2012) (“Even if a closure order causes ‘minimal delay in access to the materials upon which a judicial decision was made,’ that delay ‘threaten[s]’ ‘the value of openness.’”) (quoting In re Charlotte Observer, 882 F.2d 850, 856 (4th Cir. 1989)). The Daily Press court also noted that the newspaper’s inability to obtain “expedited review of the [sealing] order through a writ of mandamus underscores the evasive nature of the present dispute.” Id.at 453 n.3, 739 S.E.2d at 639 n.3. These observations in Daily Press, decided thirteen years after the close decision in Hertz, may indicate a willingness by the Virginia Supreme Court to revisit its decision in Hertz and recognize mandamus as the preferred method for appellate review of orders restricting public access to judicial proceedings and records.

Termination of the underlying action does not moot an appeal of an order restricting public access. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 592, 281 S.E.2d 915, 925 (1981) (citations omitted); see also Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 178, 180 n.* (4th Cir. 1988) (holding that the final disposition of the underlying dispute did not moot an appeal of a sealing order “because the right of access to judicial records and documents is independent of the disposition of the merits of the case.”).

Agreement that a sealing order was entered in error does not moot an appeal challenging the merits of the sealing order. See Daily Press, Inc. v. Com., 285 Va. 447, 454 n.6, 739 S.E.2d 636, 640 n.6 (2013).

III. Access to criminal proceedings

A. In general

The public’s qualified right of access to criminal proceedings should not be confused with acriminal defendant’s right to a public trial under the Sixth Amendment and under Article I, Section 8 of the Virginia Constitution. The right to a public trial is personal to the criminal defendant and cannot be enforced by the public. The public’s qualified right of access arises from interests separate and above that of a criminal defendant, and is independent of the defendant’s right to a public trial. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 584–85, 281 S.E.2d 915, 920 (1981).

B. Pretrial proceedings

“[T]he public’s interest in the conduct of the judicial system may be even more acute when pretrial hearings are involved,” as the overwhelming majority of criminal cases are resolved before trial. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 587, 281 S.E.2d 915, 922 (1981).

The public’s qualified right of access extends to suppression hearings. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 588, 281 S.E.2d 915, 922 (1981) (“We believe pretrial suppression hearings are as important to our criminal justice system as the trial itself, and to allow the public to view the trial without any knowledge of what has taken place previously would make the right of access granted in Richmond Newspapers a hollow one.”).

The Virginia Court of Appeals has held that the public has a qualified right of access to criminal competency hearings. See In re Times-World Corp., 25 Va. App. 405, 415, 488 S.E.2d 677, 682 (Va. Ct. App. 1997).

In Press-Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1 (1986) (Press-Enterprise II), the United States Supreme Court held that the public’s qualified right of access extends to preliminary hearings held to determine whether there is probable cause to go to trial, as such hearings are “often the final and most important step in the criminal proceeding,” and “in many cases provide[ ] the sole occasion for public observation of the criminal justice system.” 478 U.S. at 12. For similar reasons, the Fourth Circuit has held that the public’s qualified right of access extends to plea hearings and sentencing. See In re Washington Post Co., 807 F.2d 383, 389 (4th Cir. 1986) (“[E]ven if plea hearings and sentencing hearings are not considered a part of the trial itself, they are surely as much an integral part of a criminal prosecution as are preliminary probable-cause hearings, suppression hearings, or bail hearings, all of which have been held to be subject to the public’s First Amendment right of access.”). The Supreme Court of Virginia has cited the Fourth Circuit’s decision approvingly. See Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 628, 570 S.E.2d 809, 812 (2002) (citing In re Washington Post Co. for the proposition that “Under certain circumstances and with qualifications, [the public’s qualified right of access] extends to inspection of documents filed in connection with such proceedings.”).

C. Criminal trials

“[A]bsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.” Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 585, 281 S.E.2d 915, 921 (1981) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980)); see also Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 257, 368 S.E.2d 253, 255 (1988) (“The First and Fourteenth Amendments of the United States Constitution implicitly guarantee the public a qualified right of access to a criminal trial.”).

When the public is improperly excluded from a criminal trial, any transcript or recording of the proceeding must be made available to the public. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 592-93, 281 S.E.2d 915, 925 (1981).

In Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984) (“Press-Enterprise I”), the United States Supreme Court held that the public’s qualified right of access extends to voir dire, noting the long history of public access to jury selection. The Supreme Court of Virginia has cited Press-Enterprise Ifavorably and indicated agreement with its holding. SeeBuchanan v. Commonwealth, 238 Va. 389, 400, 384 S.E.2d 757, 764 (1989) (holding that the trial court did not err in refusing to close voir dire and observing that such closure “would be fraught with problems of a constitutional nature”) (citing Press-Enterprise I). Furthermore, both the Virginia Code and the Rules of the Supreme Court of Virginia contemplate voir dire being public. See Va. Code § 8.01-358 (allowing parties to question the venire about potential prejudice and bias and providing that “A juror, knowing anything relative to a fact in issue, shall disclose the same in open court.”) (emphasis added). See also Va. Sup. Ct. R. 3A:14.1(a)(1) (allowing the trial court to restrict disclosure of juror identification information in criminal cases for good cause sufficient to a warrant departure from “the norm of open proceedings”) (emphasis added).

The Virginia Court of Appeals has held that the public has a constitutional right of access to proceedings on motions to strike the Commonwealth's case-in-chief, to strike all of the evidence at the end of trial, for mistrial, and to voir dire and the selection of jury instructions. See In re Times-World Corp., 7 Va. App. 317, 327, 373 S.E.2d 474, 479 (Va. Ct. App. 1988), abrogated by Hertz v. Times-World Corp., 259 Va. 599, 528 S.E.2d 458 (2000);see alsoIn re Times-World Corp., 25 Va. App. 405, 413, 488 S.E.2d 677, 681 (Va. Ct. App. 1997) (citing Press-Enterprise I for the proposition that the public’s qualified right of access extends to voir dire).

The Virginia Code provides trial courts with the authority to exclude persons from criminal proceedings whose presence would impair the conduct of a fair trial. See Va. Code § 19.2-266. The statute merely restates the inherent power of a trial court to remove persons from the courtroom who are causing a disturbance or are otherwise disrupting the orderly conduct of a trial. The statute is not a basis for denying public access to a criminal proceeding. Any such denial must comply with the substantive and procedural requirements attend to the public’s qualified right of access. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 591, 281 S.E.2d 915, 924 (1981); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 598 (1980) (holding that Va. Code § 19.2-266 violates the First Amendment to the extent it is employed to exclude public from criminal trials without regard for the public’s presumptive right of access).

Generally speaking, proceedings in juvenile and domestic relations (“JDR”) courts are not open, with one particularly notable exception: proceedings in cases involving an adult charged with a crime and hearings held on a petition or warrant alleging that a juvenile fourteen years of age or older committed an offense which would be a felony if committed by an adult “shall be open,” and may only be closed “for good cause shown.” See Va. Code § 16.1-302(C). The Virginia Supreme Court has not yet defined good cause under this statute. In practice, the existence of good cause usually turns on whether the party seeking closure or sealing has identified an interest that is not generally applicable but unique to the particular proceeding, and whether the interest can be protected by other reasonable prophylactic measures, such as voir dire or partial closure.

D. Post-trial proceedings

The Virginia Supreme Court has recognized the public’s presumptive right of access to judicial proceedings and records generally. See generally, Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 368 S.E.2d 253 (1988). It follows that the right of access extends to post-trial proceedings and records, and the Virginia Supreme Court has suggested as much. See Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 628–29, 570 S.E.2d 809, 812 (2002) (observing that the public had not been denied access to post-trial proceedings).

E. Appellate proceedings

There are no reported cases in Virginia addressing the public’s right of access to appellate proceedings. The Fourth Circuit has held that the public’s qualified right of access extends to appellate proceedings and records. See United States v. Moussaoui, 65 F. App'x 881, 890 (4th Cir. 2003) (“There can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court.”).

Audio recordings of oral arguments since January 7, 2014 are available on the Virginia Supreme Court’s website.

In a civil case, the Virginia Supreme Court held that judicial records to which the right of access attaches include “the pleadings and any exhibits or motions filed by the parties and all orders entered by the trial court in the judicial proceedings leading to the judgment under review.” Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 257, 368 S.E.2d 253, 255 (1988).

The public’s right of access to evidence admitted during a criminal proceeding does not include the right to demand testing of such evidence. See Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 630, 570 S.E.2d 809, 813 (2002) (public’s right of access did not include right to re-test DNA material submitted into evidence during criminal proceeding).

In Virginia, the public’s presumptive right of access to court records in criminal matters is protected by statute. Trial courts in Virginia are divided into two categories: courts of record, and courts not of record. Courts of record include the circuit courts. See Title 17.1 of the Va. Code. Public access to court records for proceedings pending in circuit courts is governed by Virginia Code § 17.1-208, which provides, in pertinent part, that “[e]xcept as otherwise provided by law, any records that are maintained by the clerks of the circuit courts shall be open to inspection in the office of the clerk by any person and the clerk shall, when requested, furnish copies thereof subject to any reasonable fee charged by the clerk pursuant to § 17.1-275.” See Va. Code § 17.1-208(B). Section 17.1-208(B) makes no distinction between criminal and civil proceedings, see Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 258, 368 S.E.2d 253, 255 (1988), and its presumption of access is “equivalent” to the right of access under the First Amendment and Article I, Section 12 of the Virginia Constitution, see Daily Press, Inc. v. Commonwealth, 285 Va. 447, 456, 739 S.E.2d 636, 641 (2013). Section 17.1-208 was substantially amended in 2018. Although the language most directly pertinent to public access was not altered, it remains to be seen if and to what extent the amendments affect how Virginia courts analyze access issues relating to court records.

Courts not of record include general district courts. See Title 16.1 of the Va. Code. Although on its face, Virginia Code § 17.1-208 only applies to circuit courts, it was previously understood to apply with equal force to general district court records. See Doe v. Paradigm Mgmt. Co., 69 Va. Cir. 446, 448, 2006 WL 147592, *2 (Arlington Cir. Ct. Jan. 20, 2006) (“While the General District Court is not directly subject to Virginia Code § 17.1-208, the common law rule of openness embodied in that statute nonetheless applies the General District Court.”). However, in 2018, the Virginia General Assembly enacted a new statute governing access to general district court records, Virginia Code § 16.1-69.54:1. See 2018 Acts of Assembly, c. 584 (S.B. 564). Effective July 1, 2019, § 16.1-69.54:1 provides that:

Except where the nature or size of the request would interfere with the business of the court or with its use by the general public, or as otherwise provided by law, the requested court records or reports of aggregated, nonconfidential case data shall be provided to the requester within a reasonable period of time, given the nature of the request and the availability of staff to respond to the request, but in no event longer than 30 days from the date of a complete request made by a requester that is fully compliant with the requirements of this section and other applicable law.

Va. Code § 16.1-59.54:1(E). It remains to be seen how Virginia courts construe the statute, including when and how a request might be deemed to interfere with the business of the court, and whether such interference is grounds to deny access entirely.

Courts not of record also include juvenile and domestic relations (“JDR”) courts. Public access to JDR court records is governed by Virginia Code § 16.1-299, et seq. Generally speaking, the Virginia Code provides that JDR court records are not open for public inspection, with one particularly notable exception: proceedings in cases involving an adult charged with a crime and hearings held on a petition or warrant alleging that a juvenile fourteen years of age or older committed an offense which would be a felony if committed by an adult “shall be open,” and may only be closed “for good cause shown.” See Va. Code § 16.1-302(C). The statute distinguishes between proceedings and hearings, indicating that as used in § 16.1-302(C), the term “proceedings” includes court records. This interpretation is supported by a separate statutory provision providing that law enforcement records with respect to juveniles “shall not be open to public inspection nor their contents disclosed to the public unless a juvenile 14 years of age or older is charged with a violent juvenile felony.” Va. Code § 16.1-301(A).

The presumption of access to judicial records includes the right to contemporaneously review them. Therefore, absent a compelling interest sufficient to rebut the presumption of access, delayed access violates the public’s right of access. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 454, 739 S.E.2d 636, 640 (2013) (“Neither the expiration of the sealing order nor the later availability of the exhibits cured this deprivation of the right to contemporaneously review the files.”).

B. Arrest records

The public has a statutory right of access to arrest information under Virginia’s Freedom of Information Act, Va. Code § 2.2-3700, et seq. (“VFOIA”). VFOIA requires that the public body responsible for the arrest provide, upon request, “[i]nformation relative to the identity of any individual, other than a juvenile, who is arrested and charged, and the status of the charge or arrest,” unless disclosure is prohibited by some other provision of law. See Va. Code § 3706(A)(3). The public body can disclose the information in any appropriate format, including the arrest records themselves. See Harmon v. Ewing, 285 Va. 335, 338, 745 S.E.2d 415, 418 (2013).

Independent of VFOIA, if arrest records are submitted as evidence at trial or in connection with a pretrial proceeding, they likely become judicial records to which a presumptive right of access applies. See Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 262 n.3, 368 S.E.2d 253, 257 n.3 (1988) (no common law right of access to documents not filed with the court). See also Tianti v. Rohrer, 91 Va. Cir. 111, 2015 WL 12588950, *4 (Fairfax Cir.Ct. Aug. 14, 2015) (“VFOIA, a statute designed to ensure the public certain access to government records, does not provide a compelling interest sufficient to rebut the presumption of openness attached to judicial records.”) (emphasis in original).

C. Dockets

In Virginia, circuit court clerks are required to maintain dockets. See Va. Code § 8.01-331. Thus, dockets are presumptively open to the public. See Va. Code § 8.01-208(B) (“records that are maintained” by circuit court clerks are presumptively open to the public); Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 262 n.3, 368 S.E.2d 253, 257 n.3 (1988) (dicta referencing “docket entries” as a type of judicial records to which the presumption of access applies).

The Fourth Circuit has squarely acknowledged the public’s presumptive right of access under the First Amendment to docket entries.

The ability of the public and press to inspect docket sheets is a critical component to providing meaningful access to [judicial] proceedings. The docket sheet provides onlookers an overview of the court proceedings and allows them to ascertain the parties to the case, the materials that have been filed, and the trial judge’s decisions. Access to docket sheets therefore enhances the appearance of fairness and enlightens the public both to the procedures the district court utilized to adjudicate the claims before it and to the materials it relied upon in reaching its determinations. In this respect, docket sheets provide a kind of index to judicial proceedings and documents, and endow the public and press with the capacity to exercise their rights guaranteed by the First Amendment.

Doe v. Pub. Citizen, 749 F.3d 246, 268–69 (4th Cir. 2014) (internal citations and quotations omitted); see also In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 295 (4th Cir. 2013) (“Docket sheets exist to provide a map of proceedings in the underlying case, ensuring meaningful access to criminal proceedings.”) (internal quotations omitted); In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *3 n.3 (E.D. Va. Jan. 30, 2019) (“[T]he ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible.”) (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93-94 (2d Cir. 2004)). Therefore, “the information contained on a docket sheet is material that is presumptively open to public inspection.” In re State–Record Co., 917 F.2d 124, 129 (4th Cir.1990) (per curiam). However, pre-indictment investigative matters are not required to be publicly docketed. See In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d at 295.

D. Warrants, wiretaps and related materials

Pursuant to the Virginia Code, an affidavit in support of the search warrant must be filed with the clerk’s office within seven days of the warrant’s issuance “and shall at all times be subject to inspection by the public after the warrant that is the subject of the affidavit has been executed or 15 days after issuance of the warrant, whichever is earlier . . . [H]owever, such affidavit, any warrant issued pursuant thereto, any return made thereon, and any order sealing the affidavit, warrant, or return may be temporarily sealed for a specific period of time by the appropriate court upon application of the attorney for the Commonwealth for good cause shown in an ex parte hearing.” See Va. Code § 19.2-54.

E. Discovery materials

Discovery materials exchanged between parties are not judicial records to which a right of access attaches unless and until they are filed with the court. See Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 262 n.3, 368 S.E.2d 253, 257 n.3 (1988) (no common law right of access to documents not filed with the court); In re Times-World Corp., 25 Va. App. 405, 419, 488 S.E.2d 677, 684 (Va. Ct. App. 1997) (“We have held that the media does not have a constitutional right of access to documents produced by parties through discovery in a criminal matter. The documents here, however, are not unfiled discovery documents but were admitted into evidence in a proceeding that should have been open to the public.”); Commonwealth v. Schwartz, 59 Va. Cir. 195, 2002 WL 31989074, *1 (Loudoun Cir. Ct. July 1, 2002) (“Materials returned in response to the subpoena, unless introduced into evidence, are not subject to public disclosure.”); Commonwealth v. Robinson, 3 Va. Cir. 196, 1984 WL 569929, *2 (Alexandria Cir. Ct. May 3, 1984) (“[T]here is no requirement that discovery materials be filed and if not filed are not subject to access by either the public or the media.”); Commonwealth v. Starkey, 26 Va. Cir. 199, 1992 WL 884421, *1 (Loudoun Cir. Ct. Jan. 8, 1992) (“There is simply no requirement for the filing of most pretrial discovery responses, and thus no right of access.”).

F. Pretrial motions and records

There are no reported cases in Virginia specifically addressing the public’s right of access to pretrial motions and records in criminal matters, although the Virginia Supreme Court has addressed the public’s right of access to pretrial proceedings. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 588, 281 S.E.2d 915, 922 (1981) (public has presumptive right of access to suppression hearings).

The public’s qualified right of access under Virginia Code § 17.1-208(B) to circuit court records extends to both civil and criminal matters, and it includes “the pleadings and any exhibits or motions filed by the parties and all orders entered by the trial court in the judicial proceedings leading to the judgment under review.” Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 257, 368 S.E.2d 253, 255 (1988).

“[T]he public’s interest in the conduct of the judicial system may be even more acute when pretrial hearings are involved,” as the overwhelming majority of criminal cases are resolved before trial. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 587, 281 S.E.2d 915, 922 (1981).

See also Va. Code § 16.1-69.54:1(E) (access to general district court records) (effective July 1, 2019).

The Virginia Court of Appeals has held that the public has a qualified right of access to documents filed in connection with criminal competency hearings. See In re Times-World Corp., 25 Va. App. 405, 415, 488 S.E.2d 677, 682 (Va. Ct. App. 1997).

G. Trial records

The public’s right of access to judicial records includes the right to access exhibits entered into evidence in a judicial proceeding that lead to the judgment. See Lotz v. Commonwealth, 277 Va. 345, 351, 672 S.E.2d 833, 836 (2009) (citation omitted) (mental health report for sexually violent predator); see also Daily Press, Inc. v. Commonwealth, 285 Va. 447, 450, 739 S.E.2d 636, 638 (2013) (trial exhibits, including photographs and an autopsy report).

Where the public is improperly excluded from a criminal trial, any transcript or recording of the proceeding should be made available to the public. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 592-93, 281 S.E.2d 915, 925 (1981).

When an audio tape recording of a felony criminal trial is the only record of that trial, it is a judicial record as contemplated by the provisions of Virginia Code § 17.1-208 and, thus, open to inspection by the public. Smith v. Richmond Newspapers, Inc., 261 Va. 113, 118, 540 S.E.2d 878, 881 (2001).

Protecting original trial exhibits from damage is a valid concern but not sufficient to deny public access where the exhibits can be copied. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 455–56, 739 S.E.2d 636, 641 (2013).

The Fourth Circuit has held that the public’s right of access to trial exhibits does not attach until the exhibit is published to the jury, even if it was previously admitted into evidence. The district court should make trial exhibits available to the public as soon as is practically possible, but in no event later the day after the exhibit is published to the jury, or, in the case of an exhibit that is published to the jury in parts, after all parts of the exhibit have been published. See In re Associated Press, 172 F. App’x 1 (4th Cir. 2006).

I. Appellate records

There are no reported cases in Virginia addressing the public’s right of access to appellate records. The Fourth Circuit has held that the public’s qualified right of access extends to appellate proceedings. See United States v. Moussaoui, 65 F. App'x 881, 890 (4th Cir. 2003) (“There can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court.”).

Audio recordings of oral arguments since January 7, 2014 are available on the Virginia Supreme Court’s website.

J. Other criminal court records issues

The Office of Attorney General has opined that under Virginia Code § 17.1-208, circuit court clerks have a duty to furnish records even if the record is maintained exclusively in a digital format, provided the records are not sealed by court order or otherwise exempt from disclosure by law. See Va. Att’y Gen. Op., 2002 WL 31957978 (Dec. 19, 2002).

V. Access to civil proceedings

A. In general

In the civil context, Virginia case law on public access is almost exclusively limited to questions concerning public access to records, not the proceedings themselves. See, e.g., Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 256, 368 S.E.2d 253, 254 (1988) (recognizing public’s right of access to records in civil proceedings while observing that “[t]he public’s right to attend and observe the conduct of a civil trial is not in issue in this appeal.”).

B. Pre-trial proceedings

C. Trials

To date, neither the Supreme Court of Virginia nor the Supreme Court of the United States has squarely held that the public enjoys a qualified right of access to civil trial. See, e.g., Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 256, 368 S.E.2d 253, 254 (1988) (recognizing public’s right of access to records in civil proceedings while observing that “[t]he public’s right to attend and observe the conduct of a civil trial is not in issue in this appeal.”). However, most federal circuit courts of appeal, including the Fourth Circuit, have recognized that the First Amendment right of access extends to civil trials. See Am. Civil Liberties Union v. Holder, 673 F.3d 245, 252 (4th Cir. 2011) (citations omitted). Furthermore, the Virginia Supreme Court has acknowledged the public’s constitutional and statutory presumptive right of access to records in civil proceedings. See Perreault v. The Free Lance–Star, 276 Va. 375, 390, 666 S.E.2d 352, 360 (2008); Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253, 258, 368 S.E.2d 253, 256 (1988); see also Va. Code §§ 16.1-69.54:1(E) and17.1–208(B). Given the public’s qualified right of access to records in civil proceedings, it follows, both logically and as a practical matter, that the right extends to hearings and the trial itself. Indeed, the Virginia Supreme Court has observed, in the context of a civil lawsuit, that “[a] trial is a public event.... There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.” Am. Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350, 362, 542 S.E.2d 377, 384 (2001) (quoting Craig v. Harney, 331 U.S. 367, 374 (1947)).

D. Post-trial proceedings

E. Appellate proceedings

There are no reported cases in Virginia addressing the public’s right of access to appellate proceedings. However, the Fourth Circuit has held that the public’s qualified right of access extends to appellate proceedings. See United States v. Moussaoui, 65 F. App'x 881, 890 (4th Cir. 2003) (“There can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court.”).

Audio recordings of oral arguments since January 7, 2014 are available on the Virginia Supreme Court’s website.

A. In general

The public’s qualified right of access to circuit court records under Virginia Code § 17.1-208(B) is “equivalent” to the public’s right of access under the First Amendment and Article I, Section 12 of the Virginia Constitution. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 456, 739 S.E.2d 636, 641 (2013). The presumptive right of access to judicial records includes the right to contemporaneously review them. See id. at 454, 739 S.E.2d at 640.

Although on its face, Virginia Code § 17.1-208 only applies to circuit courts, it was previously understood to apply with equal force to general district court records. See Doe v. Paradigm Mgmt. Co., 69 Va. Cir. 446, 448, 2006 WL 147592, *2 (Arlington Cir. Ct. Jan. 20, 2006) (“While the General District Court is not directly subject to Virginia Code § 17.1-208, the common law rule of openness embodied in that statute nonetheless applies [to] the General District Court.”). However, in 2018, the Virginia General Assembly enacted a new statute governing access to general district court records, Virginia Code § 16.1-69.54:1. See 2018 Acts of Assembly, c. 584 (S.B. 564). Effective July 1, 2019, § 16.1-69.54:1 provides:

Except where the nature or size of the request would interfere with the business of the court or with its use by the general public, or as otherwise provided by law, the requested court records or reports of aggregated, nonconfidential case data shall be provided to the requester within a reasonable period of time, given the nature of the request and the availability of staff to respond to the request, but in no event longer than 30 days from the date of a complete request made by a requester that is fully compliant with the requirements of this section and other applicable law.

Va. Code § 16.1-59.54:1(E). It remains to be seen how Virginia courts construe the statute, including when and how a request might be deemed to interfere with the business of the court, and whether such interference is grounds to deny access entirely.

B. Dockets

In Virginia, circuit court clerks are required to maintain dockets. See Va. Code § 8.01-331. Thus, dockets are presumptively open to the public. See Va. Code § 8.01-208(B) (“records that are maintained” by circuit court clerks are presumptively open to the public); Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 262 n.3, 368 S.E.2d 253, 257 n.3 (1988) (referencing “docket entries” as a type of judicial records to which the presumption of access applies) (dicta).

The Fourth Circuit has squarely acknowledged the public’s presumptive right of access under the First Amendment to docket entries.

The ability of the public and press to inspect docket sheets is a critical component to providing meaningful access to [judicial] proceedings. The docket sheet provides onlookers an overview of the court proceedings and allows them to ascertain the parties to the case, the materials that have been filed, and the trial judge’s decisions. Access to docket sheets therefore enhances the appearance of fairness and enlightens the public both to the procedures the district court utilized to adjudicate the claims before it and to the materials it relied upon in reaching its determinations. In this respect, docket sheets provide a kind of index to judicial proceedings and documents, and endow the public and press with the capacity to exercise their rights guaranteed by the First Amendment.

C. Discovery materials

D. Pre-trial motions and records

A Virginia trial court improperly entered an order sealing all pleadings in new civil cases for twenty-one days after they are commenced. The court had no statutory authority to enter such an order, nor was there anything in the record justifying such action pursuant to the court’s inherent power. See Charlottesville Newspapers, Inc. v. Berry, 215 Va. 116, 118, 206 S.E.2d 267, 268 (1974).

The Fourth Circuit has specifically held that under the First Amendment, the public has a qualified right of access to dispositive motions and exhibits to those motions, as well as to judicial opinions resolving those motions. See Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988); Doe v. Pub. Citizen, 749 F.3d 246, 267 (4th Cir. 2014). Although the Virginia Supreme Court has not been as direct, it has held that the public’s right of access to judicial records attaches to “the pleadings and any exhibits or motions filed by the parties and all orders entered by the trial court in the judicial proceedings leading to the judgment under review,” Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 257, 368 S.E.2d 253, 255 (1988), as well as “[e]xhibits entered into evidence in a judicial proceeding that lead to the judgment,” see Lotz v. Commonwealth, 277 Va. 345, 351, 672 S.E.2d 833, 836 (2009) (public had rebuttable right of access to exhibits to sexually violent predator report admitted into evidence during a civil commitment hearing).

Discovery materials exchanged between parties are not judicial records to which a right of access attaches unless and until they are filed with the court. See Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 262 n.3, 368 S.E.2d 253, 257 n.3 (1988) (no common law right of access to documents not filed with the court); In re Times-World Corp., 25 Va. App. 405, 419, 488 S.E.2d 677, 684 (Va. Ct. App. 1997) (“We have held that the media does not have a constitutional right of access to documents produced by parties through discovery in a criminal matter. The documents here, however, are not unfiled discovery documents but were admitted into evidence in a proceeding that should have been open to the public.”); Commonwealth v. Schwartz, 59 Va. Cir. 195, 2002 WL 31989074, *1 (Loudoun Cir. Ct. July 1, 2002) (“Materials returned in response to the subpoena, unless introduced into evidence, are not subject to public disclosure.”); Commonwealth v. Robinson, 3 Va. Cir. 196, 1984 WL 569929, *2 (Alexandria Cir. Ct. May 3, 1984) (“[T]here is no requirement that discovery materials be filed and if not filed are not subject to access by either the public or the media.”); Commonwealth v. Starkey, 26 Va. Cir. 199, 1992 WL 884421, *1 (Loudoun Cir. Ct. Jan. 8, 1992) (“There is simply no requirement for the filing of most pretrial discovery responses, and thus no right of access.”).

Discovery depositions filed pursuant to an order requiring that they be filed for safekeeping by the clerk were deemed to not be judicial records to which the right of access applied. See Abujaber v. Kawar, 20 Va. Cir. 58, 1990 WL 751032, *2 (Loudoun Cir. Ct. Jan. 2, 1990).

Discovery depositions reviewed by the court in connection with a pretrial, non-dispositive motion were deemed to not be judicial records to which the right of access applied. See Abujaber v. Kawar, 20 Va. Cir. 58, 1990 WL 751032, *3 (Loudoun Cir. Ct. Jan. 2, 1990).

The extent of the public’s right of access to materials filed with the court does not include the right to re-test such materials. See Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 630, 570 S.E.2d 809, 813 (2002) (public’s constitutional right of access to discovery materials filed with the court did not include right to re-test DNA).

E. Trial records

The public’s qualified right of access to judicial records in civil proceedings extends to “[e]xhibits entered into evidence in a judicial proceeding that lead to the judgment.” Lotz v. Commonwealth, 277 Va. 345, 351, 672 S.E.2d 833, 836 (2009) (public has rebuttable right of access to exhibits to sexually violent predator report admitted into evidence during a civil commitment hearing).

F. Settlement records

Settlement agreements submitted to the court for approval are judicial records subject to the presumption of openness to the public. See Perreault v. The Free Lance-Star, 276 Va. 375, 387, 666 S.E.2d 352, 358 (2008). In Virginia, the terms of a settlement of a wrongful death claim must be approved by the court. Seeid.; Va. Code § 8.01-55. Likewise, an agreement to reduce the amount of a lien held by the Commonwealth for medical services rendered must be approved by the court, and the court’s reasons set forth in a written order. See Kwang Li (Jo) Chan v. Commonwealth, 92 Va. Cir. 122, 2015 WL 13567760 (Augusta Cir. Ct. July 28, 2015); Va. Code § 8.01-66.9.

G. Post-trial records

H. Appellate records

There are no reported cases in Virginia addressing the public’s right of access to appellate records. The Fourth Circuit has held that the public’s qualified right of access extends to appellate proceedings. See United States v. Moussaoui, 65 F. App'x 881, 890 (4th Cir. 2003) (“There can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court.”).

Audio recordings of oral arguments since January 7, 2014 are available on the Virginia Supreme Court’s website.

I. Other civil court records issues

The Virginia Code grants trial courts authority to seal records from divorce proceedings, including any agreement between the parties. See Va. Code § 20-124. However, the authority under § 20-124 does not negate the presumption of public access to court records. See Shiembob v. Shiembob, 55 Va. App. 234, 244, 685 S.E.2d 192, 198 (Va. Ct. App. 2009) (holding that trial court did not err in vacating its prior order sealing divorce records and finding that “Husband’s undefined concern for his professional reputation does not rebut the presumption of openness of judicial records.”); Hawkins v. Hawkins, 82 Va. Cir. 351, 2011 WL 12663403, *1 (Madison Cir. Ct. Mar. 16, 2011) (“With regard to the sequestration order, the court acknowledges its authority pursuant to § 20–124 of the Code of Virginia . . . However, in our democracy, all aspects of the judicial branch of government are open for citizens to observe and inspect.”). Once the trial court loses jurisdiction over a divorce case, it lacks authority to retroactively seal divorce records. See Martinez v. Martinez, 79 Va. Cir. 185, 2009 WL 7416011 (Fairfax Cir Ct. Aug. 4, 2009.

The Office of Attorney General has opined that under Virginia Code § 17.1-208, circuit court clerks have a duty to furnish records even if the record is maintained exclusively in a digital format, provided the records are not sealed by court order or otherwise exempt from disclosure by law. See Va. Att’y Gen. Op., 2002 WL 31957978 (Dec. 19, 2002).

The Office of the Attorney General has opined that the original marriage license and certificate maintained by the clerk of the circuit court are open to inspection by the public pursuant to Virginia Code § 17.1-208, and that the public may have access to microfilmed copies of such records. See Va. Att’y Gen. Op., 2000 WL 1545002 (Sept. 27, 2000).

VII. Jury and grand jury access

A. Access to voir dire

In Press-Enterprise Co. v. Superior Court of California, Riverside Cty., 464 U.S. 501 (1984) (Press-Enterprise I), the United States Supreme Court held that the public has a qualified right of access under the First Amendment to jury selection. The Virginia Supreme Court has never squarely held that the public’s qualified right of access extends to voir dire, but it has indicated its agreement with Press-Enterprise I. See Buchanan v. Commonwealth, 238 Va. 389, 400, 384 S.E.2d 757, 764 (1989) (holding that the trial court did not err in refusing to conduct closed voir dire and observing that doing so would have been fraught with problems of a constitutional nature.”) (citing Press-Enterprise I). Furthermore, both the Virginia Code and the Rules of the Supreme Court of Virginia contemplate voir dire being public. See Va. Code § 8.01-358 (allowing parties to question the venire about potential prejudice and bias and providing that “A juror, knowing anything relative to a fact in issue, shall disclose the same in open court.”) (emphasis added). See also Va. Sup. Ct. R. 3A:14.1(a)(1) (allowing the trial court to restrict disclosure of juror identification information in criminal cases for good cause sufficient to a warrant departure from “the norm of open proceedings”) (emphasis added).

The Virginia Court of Appeals has held that the public has a constitutional right of access to voir dire. See In re Times-World Corp., 7 Va. App. 317, 327, 373 S.E.2d 474, 479 (Va. Ct. App. 1988), abrogated by Hertz v. Times-World Corp., 259 Va. 599, 528 S.E.2d 458 (2000); see also In re Times-World Corp., 25 Va. App. 405, 413, 488 S.E.2d 677, 681 (Va. Ct. App. 1997) (citing Press-Enterprise I for the proposition that the public’s qualified right of access extends to voir dire).

B. Juror identities, questionnaires and other records

The Virginia Supreme Court has held that a master jury list, whether current or expired, may not be disclosed absent good cause. See Prieto v. Commonwealth, 283 Va. 149, 185, 721 S.E.2d 484, 505 (2012); see also Va. Code § 8.01-347 (box containing master jury list “shall be locked and safely kept by the clerk of such court and opened only by the direction of the judge thereof.”).

Because voir dire is presumptively open to the public, the Fourth Circuit has held that so, too, are the names and addresses of the jurors, as well as the men and women summoned but not chosen for the jury. The presumption of openness to juror identifying information may be overcome in circumstances involving “realistic threats of violence or jury corruption.” See In re Baltimore Sun Co., 841 F.2d 74, 76 (4th Cir. 1988).

The Virginia Code and the Rules of the Supreme Court of Virginia provide for restrictions on the disclosure of juror identification information in criminal cases for “good cause sufficient to warrant departure from the norm of open proceedings[.]” Va. Sup. Ct. R. 3A:14.1(a)(1); see also Va. Code § 19.2-263.3. Good cause “includes, but is not limited to, a determination by the court in a particular case that if personal information of jurors or prospective jurors is disclosed there is a reasonable possibility of bribery, tampering, physical injury, harassment, intimidation of a juror, or any other material interference with the proper discharge of the jury's functions, such as a reasonably perceived threat to the jury's safety, well-being, or capacity to properly focus upon and perform its trial and deliberative duties.” See Va. Sup. Ct. R. 3A:14.1(a). See also Va. Code § 19.2-263.3(A) (“good cause shown includes, but is not limited to, a determination by the court that there is a likelihood of bribery, tampering, or physical injury to or harassment of a juror if his personal information is disclosed.”).

C. Grand jury proceedings and records

Grand jury proceedings are secret. See Va. Code § 19.2-192. “The rationale for non-disclosure to the public is twofold: (1) to protect the reputation of suspected individuals from the stigma which investigation alone can bring, and (2) to promote public cooperation in investigations by providing some anonymity and reducing the risk of recrimination.” Vihko v. Commonwealth, 10 Va. App. 498, 504, 393 S.E.2d 413, 417 (Va. Ct. App. 1990).

Virginia recognizes a statutory exception to grand jury secrecy when a grand jury witness is prosecuted for perjury. See Va. Code § 19.2-192.

In Virginia, “a special grand jury impaneled [sic] by the court on its own motion or on recommendation of a regular grand jury shall file a report of its findings with the court,” and the report “shall be sealed and not open to public inspection, other than by order of the court.” See Va. Code § 19.2-213. In determining whether to unseal a report of a special grand jury, a trial court in Virginia applied the test the United States Supreme Court articulated in Douglas Oil Co. of California v. Petrol Stops Nw., 441 U.S. 211, 222 (1979) for unsealing grand jury materials. “Parties seeking grand jury transcripts . . . must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed. Such a showing must be made even when the grand jury whose transcripts are sought has concluded its operations . . . .” See In re Special Grand Jury Report on Town of Vinton Police Dep't, 54 Va. Cir. 482, 2001 WL 1262344, *3 (Roanoke County Cir. Ct. Feb. 7, 2001) (quoting Douglas Oil, 441 U.S. at 222).

Upon ex parte motion by the Commonwealth and for good cause shown, the circuit court may seal an indictment until such time as the defendant is arrested. Va. Code § 19.2-192.1.

D. Interviewing jurors

In Virginia, there is no general prohibition on interviewing jurors by third-parties.

However, there may be restrictions on the parties’ ability to interview jurors. Rule 2:606 of Virginia’s Rules of Evidence is identical to Rule 606 of the Federal Rules of Evidence, which the Fourth Circuit has held “prohibit[s] the interrogation of jurors except with regard to ‘whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.’” United States v. Gravely, 840 F.2d 1156, 1159 (4th Cir. 1988) (quoting Fed. R. Evid. 606(b)).

A. Delinquency

Proceedings in Virginia’s juvenile and domestic relations (“JDR”) courts are generally closed to the public. However, proceedings in cases involving an adult charged with a crime and hearings held on a petition or warrant alleging that a juvenile fourteen years of age or older committed an offense which would be a felony if committed by an adult “shall be open,” and may only be closed “for good cause shown.” See Va. Code § 16.1-302(C). The statute distinguishes between proceedings and hearings, indicating that as used in § 16.1-302(C), the term “proceedings” includes court records. This interpretation is supported by a separate statutory provision providing that law enforcement records with respect to juveniles “shall not be open to public inspection nor their contents disclosed to the public unless a juvenile 14 years of age or older is charged with a violent juvenile felony.” Va. Code § 16.1-301(A).

The Virginia Supreme Court has not yet defined good cause under this statute. In practice, the existence of good cause usually turns on whether the party seeking closure or sealing has identified an interest that is unique to the particular proceeding and not all juvenile proceedings, and whether the interest can be protected by other reasonable prophylactic measures, such as voir dire and partial closure or sealing.

B. Dependency

In any child or spousal support case appealed from the juvenile domestic relations (“JDR”) court to the circuit court, the case files shall be open for inspection only as provided by Virginia Code § 16.1-305.01. See Va. Code § 16.1-302(A). Section 16.1-305.01 limits access to the court and its staff; the parties and their counsel of record; the Department of Social Services and the Division of Child Support Enforcement; and by order of the court, any other person, agency or institution “having a legitimate interest in such case files or the work of the court.” See Va. Code § 16.1-305.01.

C. Other proceedings involving minors

In any criminal proceeding relating to a violation of the laws pertaining to kidnapping (§ 18.2-47 et seq.), criminal sexual assault (§ 18.2-61 et seq.) or family offenses pursuant to Article 4 (§ 18.2-362 et seq.) of Chapter 8 of Title 18.2 of the Virginia Code, or involving an alleged murder, under certain conditions, juvenile victims and juvenile witnesses may testify from a room outside the courtroom. However, the child’s testimony shall be transmitted by closed-circuit television into the courtroom for the defendant, jury, judge and the public to view. See Va. Code § 18.2-67.9.

D. Prohibitions on photographing or identifying juveniles

The Virginia Code prohibits audio/video and still photography coverage of minors in the courtroom and of juvenile proceedings. See Va. Code § 19.2-266(3) and (4).

An order prohibiting the media from publishing the name of a juvenile defendant whose identity was disclosed in open court constitutes an unconstitutional prior restraint on speech. See Oklahoma Pub. Co. v. Dist. Court In & For Oklahoma Cty., 430 U.S. 308 (1977).

E. Minor testimony in non-juvenile courts

In any criminal proceeding relating to a violation of the laws pertaining to kidnapping (§ 18.2-47 et seq.), criminal sexual assault (§ 18.2-61 et seq.) or family offenses pursuant to Article 4 (§ 18.2-362 et seq.) of Chapter 8 of Title 18.2 of the Virginia Code, or involving an alleged murder, under certain conditions, juvenile victims and juvenile witnesses may testify from a room outside the courtroom. However, the child’s testimony shall be transmitted by closed-circuit television into the courtroom for the defendant, jury, judge and the public to view. See Va. Code § 18.2-67.9.

Similarly, in certain circumstances, a child may testify by closed circuit television in civil proceeding involving alleged abuse or neglect of a child, and the child’s testimony shall be transmitted into the courtroom for the public to view. See Va. Code § 63.2-1521(E). These provisions apply mutatis mutandis to the testimony of certain minors in preliminary removal proceedings arising out of alleged abuse or neglect of the child. See Va. Code § 16.1-252(D).

IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

C. Competency and commitment proceedings

The public has a qualified right of access to criminal competency hearings. See In re Times-World Corp., 25 Va. App. 405, 415, 488 S.E.2d 677, 682 (Va. Ct. App. 1997); see alsoVa. Att’y Gen. Op. 08-099, 2009 WL 570958 (Feb. 25, 2009) (opining that a competency evaluation report that was ordered by and submitted to a court as part of the court’s record is open to inspection under § 17.1-208, provided such report is not sealed by court order).

The public has a rebuttable right of access to exhibits to a sexually violent predator report admitted into evidence during a civil commitment proceeding. Lotz v. Commonwealth, 277 Va. 345, 351, 672 S.E.2d 833, 836 (2009).

D. Attorney and judicial discipline

Under the Rules of the Supreme Court of Virginia, the attorney discipline process is confidential unless there is a hearing on charges of misconduct or the lawyer receives public discipline (public admonition, public reprimand, suspension, or revocation). See generally, Va. Sup. Ct. R. Pt. 6, § IV, Para. 13-30 (confidentiality of disciplinary records and proceedings). See also Va. Sup. Ct. R. Pt. 6, § IV, Para. 13-16(G) (“District Committee hearings, except deliberations, shall be open to the public.”).

All papers filed with and proceedings before the Judicial Inquiry and Review Commission, including the identification of the judge being investigated, as well as all testimony and other evidence and any transcript thereof made by a reporter, is confidential. See Va. Code § 17.1-913(A). Interestingly, Article VI, § 10 of the Virginia Constitution initially provided that proceedings before the Commission “shall be confidential” but was amended to provide that the proceedings “may be confidential as provided by the General Assembly in general law.” See 1997 Acts of Assembly, c. 768; 1998 Acts of Assembly, c. 770; see also Va. Const. art. VI, § 10 (emphasis added). However, if the Commission files a formal complaint with the Virginia Supreme Court, the Virginia Constitution mandates that the proceedings before the Supreme Court be open to the public. See Va. Const. art. VI, § 10 (“Upon the filing of a complaint, the Supreme Court shall conduct a hearing in open court . . . .”). See also Landmark Commc'ns, Inc. v. Commonwealth, 217 Va. 699, 702, 233 S.E.2d 120, 123 (1977) (“[O]nly upon the filing of such a complaint is the record of a proceeding before the Commission placed in the public domain; only then does information concerning a proceeding before the Commission lose its confidential character.”), rev'd on other grounds Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829 (1978). Additionally, if the judge is prosecuted for perjury based on statements made in a proceeding before the Commission, records of the proceeding on which the perjury charge is based lose their confidential status. See Va. Code § 17.1-913(A).

The First Amendment does not permit the criminal punishment of a newspaper for divulging or publishing accurate information regarding confidential proceedings of the Judicial Inquiry and Review Commission. See Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829 (1978).

E. Immigration proceedings

F. Other proceedings

A judicial recount pursuant to Virginia Code § 24.2-800, et seq. is a judicial proceeding to which the public has a presumptive right of access. See Joshua G. Colev. Robert M. “Bob” Thomas, Jr., Civil Action No. CL17-2475-00, Order at 1 (Stafford County Cir. Ct. Dec. 21, 2017); see also Penick v. Ratcliffe, 149 Va. 618, 140 S.E. 664 (1927) (holding that a statutory action seeking a recount in a primary election constitutes a judicial proceeding).

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

The Fourth Circuit has held that members of the media have standing to challenge a gag order that directly impairs the media’s rights under the First Amendment to gather news, and to receive speech from willing speakers. See In re The Wall St. Journal, 601 F. App’x 215 (4th Cir. 2015) (per curiam) (remanding with instructions to vacate gag order); In re Murphy-Brown, LLC, 907 F.3d 788, 796 (4th Cir. 2018) (same).

B. Gag orders on the press

The Fourth Circuit has suggested that a gag order that interferes with legitimate newsgathering activities would violate the First Amendment. See In re Murphy-Brown, LLC, 907 F.3d 788, 800 (4th Cir. 2018).

The First Amendment does not permit the criminal punishment of a newspaper for divulging or publishing accurate information regarding confidential proceedings of the Judicial Inquiry and Review Commission. See Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829 (1978).

C. Gag orders on participants

Gag orders are subject to strict scrutiny and may only issue if (i) there is a likelihood that publicity, unchecked, would so distort the views of potential jurors that enough could not be found who would, under proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court; (ii) the restrictions constitute the least restrictive means to protected the perceived harm; (iii) the restrictions actually operate to prevent the threatened danger; and (iv) the restrictions are narrowly tailored to protecting the perceived harm. See In re Murphy-Brown, LLC, 907 F.3d 788 (4th Cir. 2018) (vacating gag orderpurporting to restrict all parties and their lawyers, representatives, and agents, as well as “all potential witnesses” from speaking publicly about twenty interrelated civil nuisance lawsuits).

D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

A criminal defendant’s Sixth Amendment right to a fair trial can only overcome the presumption of openness if specific findings are made that: (1) there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity and that closure would prevent that prejudice; and (2) reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 455, 739 S.E.2d 636, 641 (2013) (citing Press–Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986)).

A criminal defendant’s right to an impartial jury is irrelevant where the defendant elects for a bench trial. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 455–56, 739 S.E.2d 636, 641 (2013).

The fact that a record filed with the court would have been exempt from mandatory disclosure under Virginia’s Freedom of Information Act does not establish a compelling interest to deny public access to judicial records. See Tianti v. Rohrer, 91 Va. Cir. 111, 2015 WL 12588950, *4 (Fairfax Cir.Ct. Aug. 14, 2015) (“VFOIA, a statute designed to ensure the public certain access to government records, does not provide a compelling interest sufficient to rebut the presumption of openness attached to judicial records.”) (emphasis in original).

B. Cameras and other technology in the courtroom

Virginia does not recognize a right to video, record or photograph court proceedings. Pursuant to Va. Code § 19.2-266, trial courts have “sole discretion” to permit or deny photography and filming in the courtroom during both civil and criminal proceedings. The trial court’s decision is subject to judicial review, albeit under a highly deferential abuse of discretion standard. The “good cause” standard referenced in § 19.2-266 applies only after the trial court has made a threshold determination to allow coverage in the courtroom; a party may then move to prohibit or restrict the coverage for good cause. There is no requirement that evidence be presented to the trial court to support the decision, and the trial court is not required to explain its reasons for denying a request. See Virginia Broad. Corp. v. Commonwealth, 286 Va. 239, 749 S.E.2d 313 (2013).

Audio/video and photography coverage is prohibited in adoption proceedings, juvenile proceedings, child custody proceedings, divorce proceedings, temporary and permanent spousal support proceedings, proceedings concerning sexual offenses, proceedings for the hearing of motions to suppress evidence, proceedings involving trade secrets, and in cameraproceedings. Va. Code § 19.2-266(2). Certain witnesses, including police informants, minors, undercover agents and victims and families of victims of sexual offenses, cannot be recorded or photographed. Va. Code § 19.2-266(3). Jurors cannot be recorded or photographed at any stage of the proceedings. Va. Code § 19.2-266(4). Lastly, there shall be no recording or broadcast of sound from such conferences which occur in a court facility between attorneys and their clients, between co-counsel of a client, between adverse counsel, or between counsel and the presiding judge held at the bench or in chambers. Va. Code § 19.2-266(5).

None of the film, video tape, still photographs or audio reproductions developed during or by virtue of coverage of a judicial proceeding shall be admissible as evidence (i) in the proceeding out of which it arose, (ii) in any proceeding subsequent and collateral thereto, or (iii) upon any retrial or appeal of such proceedings. See Va. Code § 19.2-266.

The Virginia Supreme Court’s policy governing requests to photograph or video record oral arguments is available on the court’s website. See “Media Policies for Coverage of Arguments in the Supreme Court of Virginia,” dated October 26, 2015. Generally speaking, such a request should be coordinated through the Virginia Press Association, and the decision to allow photography or video-recording is within the court’s sole discretion.

C. Tips for covering courts in the jurisdiction

It is critical to get in front of any anticipated access problems. Judges appreciate being advised of access rights before making a decision on what they might otherwise perceive as a routine or noncontroversial request for closure. Moreover, as a practical matter, convincing a judge not to do something is much easier than convincing the judge to undo something he/she has already done. Accordingly, if closure or sealing motions are anticipated, a party seeking access is well advised to give notice of its desire to be heard on any such motions. An informal letter to the court, copying counsel of record, usually suffices to give notice of one’s interest in being heard on an anticipated but not yet filed motion to restrict public access.

A party seeking to attend the trial of a high profile matter and to access trial exhibits should contact the trial court in advance to determine if any procedures have been adopted to facilitate public access, such as providing an extra room in the courthouse for overflow attendees to view the trial by closed-circuit video, and for timely release of trial exhibits. A letter to the court, copying counsel of record, should suffice for this initial inquiry. The inquiry will often prompt the court to adopt procedures. Trial courts have discretion over the extent to which they must accommodate public access at trial.

The right of access is qualified, not absolute. Therefore, third-parties are well-advised not to adopt a demanding or overbearing approach to access, but to request it in a civil and professional manner that avoids undue disruption and interference with the underlying proceeding. Most Virginia judges understand and appreciate the value of public access. However, no judge appreciates discourteous and disruptive behavior by third-party intervenors, and such behavior will foreclose the potential for accommodations not required to protect the public’s right of access.

Conferring with the litigants before intervening is vital, as it may reveal a meritorious basis for closure not apparent from the record. Additionally, to the extent an agreement can be reached, it will bolster arguments for access.

Attempts to obtain access to proceeding and records in juvenile and domestic relations (“JDR”) courts can be frustrating. Almost all JDR court proceedings and records are, by law, closed. Consequently, JDR court judges are not accustomed to requests for public access, and often are not familiar with the provision of the Virginia Code permitting access to proceedings involving adults or juveniles over fourteen charged with felony-level offenses. Some JDR court judges seemingly refuse to accept the Virginia General Assembly’s authority to allow access to juvenile proceedings under any circumstances. Resiliency, professionalism and courtesy are all helpful qualities when seeking access to JDR proceedings.